2011 (11) TMI 134 - AT - Service Tax

Jurisdiction defect - Power of the Commissioner (Appeals) to remand - Refund of unutilized CENVAT credit on input services used in relation to output services exported - Commissioner (Appeals) directing rule 5 of board circular No. 120/01/2010 to be followed Held that - The impugned orders cannot be considered as a remand orders. Commissioner (Appeals) found nexus between the input services and the output services and only require the lower authority to re-quantify the amount of refund on the basis of the Board s circular no. 120/01/2010 dated 19.01.2010. When the original orders were passed by the adjudicating authority, the Board s circular was not in force. The appellate authority rightly required the original authority to re-quantify the amounts for refund on the basis of chartered accountant s certificate to be produced by the party in terms of the Board s circular. Such orders cannot be held to be a remand orders. The appeals are rejected.

Summary

Issues:
Refund claims under CENVAT Credit Rules 2004, jurisdiction of Commissioner (Appeals) for remand orders.

Analysis:
The case involves refund claims under Rule 5 of the CENVAT Credit Rules 2004, where the respondent sought a refund of unutilized CENVAT credit on certain services used in relation to exported output services. The original authority granted partial relief but held that some claimed input services lacked nexus with output services. Both the assessee and the department appealed to the Commissioner (Appeals). The Commissioner (Appeals) set aside the original authority's decision, requiring the Assistant Commissioner to grant relief based on a chartered accountant's certificate, as per a relevant Board's Circular. The department appealed, arguing that the Commissioner (Appeals) lacked jurisdiction for remand orders, citing legal precedents. The respondent contended that the orders were not remand orders, as the appellate authority had only required re-quantification of refunds based on the Circular.

The Tribunal found that the appeals were not liable to be allowed. It determined that the orders were not remand orders, as the Commissioner (Appeals) had established a nexus between input and output services, only requiring re-quantification based on the Circular. The Tribunal noted that the Circular was not in force when the original orders were passed, necessitating compliance with the prescribed procedure for examining refund claims. Therefore, the Tribunal rejected the department's appeals, stating that the orders did not constitute remand orders as argued by the department. The Tribunal also disposed of the cross objections filed by the respondent and the stay applications.

In conclusion, the Tribunal upheld the Commissioner (Appeals) decision, emphasizing the need for re-quantification of refunds based on the Circular's requirements. The Tribunal clarified that the orders did not amount to remand orders and dismissed the department's appeals accordingly.